ODONKOR AND OTHERS vs. BOTCHWAY [1991]DLCA2283

Date	1991-05-23
Suit No.
Citation No.	[1991]DLCA2283

AMPIAH JA

AMUAH JA

ADJABENG JJ.A.

E. D. KOM SAG (WITH HIM KUADA AND EMMANUEL MANU) FOR THE DEFENDANT-APPELLANTS.

JAMES AHENKORAH (WITH HIM KOJO HACKMAN) FOR THE PLAINTIFF-RESPONDENT.

[1991]DLCA2283
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													<main id="main" class="content" style="min-height: 60rem" >ODONKOR
AND OTHERS<o:p></o:p>vs.<o:p></o:p>BOTCHWAY<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 1<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>E. D.
KOM, SAG (WITH HIM KUADA AND EMMANUEL MANU) FOR THE DEFENDANT-APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JAMES
AHENKORAH (WITH HIM KOJO HACKMAN) FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

AMPIAH,
AMUAH AND ADJABENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF AMPIAH J.A.<o:p></o:p>This is
an appeal from the judgment of the High Court, Accra. The plaintiff-respondent
herein claimed for himself and on behalf of his Nii Armah Sogblah family of Osu
damages for trespass by the defendant-appellants herein to a piece of land at
Haatso on which there is the village Haatso, lying north of the University of
Ghana, Legon, Accra. He also claimed for an order of perpetual injunction. The
defendants as members of the Odai Ntow or Ashong Dzemawung family resisted the
plaintiff’s claim and asserted that the plaintiff’s family being on the land
only by permission of the defendants’ family, they have no right to claim
damages against them for trespass. There was an attempt to counterclaim for a
declaration of title, forfeiture and ejectment by the defendants but
unfortunately the counterclaim as part of a statement of defence filed
irregularly was struck out. There was no appeal against the striking out and no
attempt was made to regularise the filing. This action was considered with
reference to the defence filed on 3 April 1987.<o:p></o:p>Since the
plaintiff had claimed for an order of perpetual injunction together with his
claim for damages for trespass, he was required on the authorities to establish
title also to the land in dispute: see Kponuglo v. Kodadja (1933) 2 W.A.C.A.
24, P.C. The onus of proof also fell on the plaintiff to establish his own case
and not to rely on the weakness of the defence.<o:p></o:p>At the
close of the trial, the learned trial judge found for the plaintiff and
declared him owner of the land. He also awarded him damages and ordered
perpetual injunction against the defendants, their agents, servants, licensees
or otherwise. It is against this judgment of 11 October 1990 that the defendants
have appealed.<o:p></o:p>The
defendants filed many grounds of appeal but I think the gravamen of their
complaint against the judgment was that as the plaintiff’s family was on the
land by leave and licence of the defendants’ family, the plaintiff’s family
could not have been declared owners of the land simply because they have been
in long and undisturbed possession of the land. They contended further that the
plaintiff had failed to establish the extent of land granted his family.<o:p></o:p>Although
the defendants attempted to establish possession of some portions of the land
in themselves, the evidence overwhelmingly shows that ever since the
plaintiff’s family took possession of the land, save for the recent acts of the
defendants which prompted this action, the plaintiff’s family have before and
after 1904 had exclusive possession of the whole land. The learned trial judge
so found.<o:p></o:p>The
plaintiff’s evidence was that his ancestors had obtained the land from Ashong
Dzemawung (also known as Odai Ntow or Ashong Obosin) of the defendants’ family
over 300 years ago and have settled on the land and exercised overt acts of
ownership over the land, including building, farming and the granting of
portions to the government and strangers for building and farming purposes,
without any protest or hindrance from the defendants’ family. In fact, they had
exercised these rights exclusively to the knowledge of the defendants. The
plaintiff gave a vivid description of the land claimed and tendered in evidence
exhibits A and B to identify the position and area of Haatso. The defendants on
the other hand demonstrated their complete ignorance of the area granted by
them to the plaintiff’s family. They tendered exhibits 2 and 3 which showed
that the plaintiff and his family have occupied a certain extent of the land.
These plans which agreed with the area claimed by the plaintiff, shows that the
defendants are aware of the land the plaintiff is asserting title to. On the
evidence therefore, the identity of the land claimed by the plaintiff was clear;
there was no doubt as to the extent of the land claimed. The defendants however
were uncertain about the land they had granted permission to the plaintiff’s
family to live on.<o:p></o:p>It was
contended by counsel for the defendants that since the plaintiff’s family had
admitted the grant from the defendants’ family, it was for them to establish
the nature and extent of the grant made to them, and the judge was required to
make a finding on these.<o:p></o:p>As stated
above, the plaintiff established the extent of the land he claimed the
defendants’ family granted his family. Since the defendants could not establish
what land they had given to the plaintiff’s family, it could be presumed that
the land the plaintiff’s family occupies now is the land granted them.<o:p></o:p>